Withford v Moran
[2014] NSWLEC 1261
•17 December 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Withford v Moran [2014] NSWLEC 1261 Hearing dates: 17 December 2014 Decision date: 17 December 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph (11).
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); risk of damage and injury; application upheld; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: John Withford (Applicant)
Joyce Moran (Respondent)Representation: John Withford, litigant in person (Applicant)
Paul & Jennifer Phillips, agents (Respondent)
File Number(s): 20667 of 2014
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
The leafy Sydney suburb of Beecroft has tall trees growing between and above residential dwellings. Many of the trees are native to the area and are part of the "Blue Gum High Forest" ecological community.
Mr Withford ("the applicant") has lived at his Beecroft property since 1971. In that time, a neighbouring tree that overhangs his property has, he says, frequently dropped limbs onto his property. Through several letters, the first in 2010, he has asked his neighbour Ms Moran ("the respondent"), who owns the property on which the tree grows, to prune that part of the crown that overhangs his property. Branches above his property have not been pruned. Concerned about the possibility of falling branches causing damage or injury, he has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the tree to be pruned now and at regular intervals.
Ms Moran has recently moved into a nursing home. Her daughter and son-in-law, Mr and Mrs Phillips, represented her at the hearing.
Ms Moran's property was successfully auctioned on 29 November, with final settlement scheduled for 15 January.
Framework
The Court can make orders to remedy, restrain or prevent damage to property, or to prevent injury to a person (s 9 of the Trees Act) but only if first satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or injury to any person (s 10(2) of the Trees Act). If the Court's jurisdiction is thus enlivened, a range of matters at s 12 of the Trees Act must be considered before making any orders.
The parties' submissions and evidence
As evidence of the tree's history of limb failure, Mr Withford produced photographs showing limbs that have fallen onto his driveway, garden and roof, the latter breaking roof tiles. He has also obtained an arboricultural report from Meredith Gibbs of Australis Tree Management. Ms Gibbs concludes that the tree is in "adequate health and condition" with only "typical minor issues" and recommends pruning the tree to remove deadwood over 30 mm in diameter and minor crown thinning to remove any diseased and dying branches.
Mr Phillips, the respondent's son-in-law, argues that Mr Withford's application is invalid because it relies on assumptions and lacks proof of Mr Withford's allegations. He says the Court cannot be certain that branches in photos and kept onsite are from the subject tree, nor that roof tiles were broken by a branch from the tree. I do not accept this. There is nothing unusual in the nature of evidence provided by the applicant, and while the persuasive burden lies with the applicant, the Court has the ability and expertise to allocate due weight to adduced evidence and to reach its own conclusions based on the balance of probabilities. It should be noted that the application does not include any orders for compensation, and so it is the general history of the tree, and its present condition, that are more important to this decision than any specific incident in the past. To this end it is the applicant who has commissioned an arborist report.
The Court's jurisdiction is enlivened
At the onsite hearing I observed the tree, which is a mature Grey Ironbark (Eucalyptus paniculata) some 25 metres tall growing within the respondent's property, adjacent to the common boundary. The crown partly overhangs Mr Withford's property. Limbs that have fallen from the tree have been dead branches of typical size for a tree of this species, size and age. Bringing my own arboricultural expertise to the matter, I accept that further limb failures are likely and that they are likely to cause damage to the applicant's property or injury. The Court's jurisdiction is enlivened. I am of the view that the risk of damage and injury can be satisfactorily managed through regular pruning such as Ms Gibbs has recommended. Such pruning will not adversely affect the tree or detract from its environmental value or the amenity it provides.
The nature of the orders
Although Mr Phillips points out that the applicant will benefit from any pruning, and should therefore pay for, or at least contribute to, the costs of carrying out any orders, I see no reason to vary from the Court's usual practice in such situations that the tree owner is responsible for the tree and will ordinarily pay the cost of any works ordered. Deadwood and diseased branches will continue to develop and I accept that orders for ongoing pruning at two-year intervals are appropriate.
I make the orders with the respondent's pending property settlement in mind. I invited submissions about the reasonable timing of the works, given the upcoming holiday period and the date of settlement. Mr and Mrs Phillips are confident that the first instance of pruning can occur before 15 January. For simplicity then, I will not adjourn the matter to allow the new owners of the respondent's property to be joined as parties to the matter. As prescribed by the Act at s 16, the orders for ongoing pruning will transfer to the new owners if and when the applicant serves the orders upon them, following settlement. To ensure that the initial pruning occurrence does not pass on to the new owners should the current property owner not carry out the works, the orders for the initial pruning are directed at Ms Moran rather than "the respondent". Mr and Mrs Phillips, on her behalf, expressed their understanding that they are responsible for carrying out these works.
Orders
As a consequence of the foregoing, the Court orders that:
(1) The application is upheld.
(2) By 14 January 2015 Ms Moran (or Mr and Mrs Phillips on her behalf) are to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to carry out the following pruning works:
(a) Removal of all deadwood 30mm diameter and greater from all parts of the tree that overhang the applicant's property;
(b) Crown thinning of branches that may be diseased or dying from all parts of the tree that overhang the applicant's property;
(c) Reduction or removal of any other branches that the arborist identifies as hazardous while carrying out the works.
(3) The works in (2) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(4) Given reasonable notice, the applicant is to allow any access required for the pruning ordered above during reasonable hours of the day.
(5) Every two years, within two weeks of the anniversary of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to carry out the following pruning works:
(a) Removal of all deadwood 30mm diameter and greater from all parts of the tree that overhang the applicant's property;
(b) Crown thinning of branches that may be diseased or dying from all parts of the tree that overhang the applicant's property;
(c) Reduction or removal of any other branches that the arborist identifies as hazardous while carrying out the works.
(6) The works in (5) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(7) Given reasonable notice, the applicant is to allow any access required for the pruning ordered above during reasonable hours of the day.
D Galwey
Acting Commissioner of the Court
Decision last updated: 18 December 2014
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